Hollywood producer Harvey Weinstein is so certain that he is going to win a libel case against the New York Times that he already has decided what to do with the money — before even filing the lawsuit.
“We are preparing the lawsuit now,” Weinstein's attorney, Charles Harder, told the Hollywood Reporter. “All proceeds will be donated to women's organizations.”
He shouldn't be so confident.
Libel cases are hard to win, especially for public figures, such as Weinstein, who would have to prove not only that the Times published false claims of sexual harassment but also that the newspaper did so with “actual malice.”
“Actual malice means that a statement was made with knowledge that it was false or with reckless disregard of whether or not it was false,” according to the Legal Information Institute at Cornell.
What's more, Weinstein has basically, though not explicitly, admitted to sexually harassing women who worked for him. Here's a portion of the statement he issued to the Times before publication:
I realized some time ago that I needed to be a better person, and my interactions with the people I work with have changed.
I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know I have a long way to go . . .
I want a second chance in the community, but I know I've got work to do to earn it. I have goals that are now priorities. Trust me; this isn't an overnight process. I've been trying to do this for 10 years, and this is a wake-up call. I cannot be more remorseful about the people I hurt, and I plan to do right by all of them.
“If he sues on the theory that the whole report is defamatory, his admission that some of it is true could be fatal,” said David A. Anderson, a libel law expert at the University of Texas.
Anderson's advice to Weinstein: “He should single out the allegations that he thinks are false and sue on those, individually.”
Weinstein's position appears to be that, yes, he harassed some women, but some of the claims published by the Times are false. Let's suppose he is right. He would still encounter a problem in court, according to Anderson.
“He might have trouble showing how he has been harmed by one allegation if he concedes that similar allegations are true,” Anderson said.
This is a key point. Beyond demonstrating falsity and actual malice, Weinstein would have to show that any untrue allegations published by the Times inflicted damage.
This standard was on display in August when a Los Angeles judge tossed a libel suit that celebrity fitness trainer Richard Simmons filed against the National Enquirer. The Enquirer had published a story claiming Simmons was transitioning into a woman; Simmons denied the report. The judge said the veracity of the claim didn't matter because it is not insulting to be called a trans woman.
“While, as a practical matter, the characteristic may be held in contempt by a portion of the population, the court will not validate those prejudices by legally recognizing them,” Judge Gregory Keosian wrote.
It is clearly insulting to be called a serial sexual harasser. But if you have acknowledged sexual harassment — and your behavior is well known — can you credibly claim that your reputation was damaged by a few additional harassment accusations that turn out to be false?
Weinstein, being a wealthy and powerful figure, has the benefit of excellent legal representation, of course. His team includes Lisa Bloom, better known for representing victims of sexual harassment.
Harder is known for helping Hulk Hogan win a $140 million judgment in a case against Gawker Media last year. It is important to note, however, that the Hogan suit was about invasion of privacy, not libel.
“I don't think the Gawker case is legally relevant, unless Weinstein sues for invasion of privacy,” Anderson said. “Of course, it may be relevant in the sense that it gives Weinstein's lawyer some valuable experience.”